Crimm v. Missouri Pacific R. Co.
| Decision Date | 19 December 1984 |
| Docket Number | No. 83-2363,83-2363 |
| Parties | 36 Fair Empl.Prac.Cas. 883, 35 Empl. Prac. Dec. P 34,824, 40 Fed.R.Serv.2d 1059, 17 Fed. R. Evid. Serv. 495 Willard CRIMM, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Louis Gilden, St. Louis, Mo., for appellant.
Richard E. Jaudes and Bradley S. Hiles, St. Louis, Mo., for appellee.
Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
Willard Crimm appeals from a final judgment entered in the District Court 1 for the Eastern District of Missouri upon a jury verdict in favor of his former employer, Missouri Pacific Railroad Company (MoPac) in an action for damages under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 (1982) (ADEA). For reversal appellant argues that the district court erred in (1) giving a verdict director instruction which confused and misled the jury and which was contrary to the law, (2) refusing to give a circumstantial evidence instruction, (3) limiting cross-examination about the female worker's shoplifting conviction and prior drug use, (4) refusing to admit evidence concerning MoPac's Senior Transition Program, (5) refusing to grant a mistrial after a juror disclosed during trial that he had been accused of sexual harassment, (6) refusing to admit into evidence appellant's deposition testimony, (7) taking judicial notice of an EEOC regulation on strict liability and presenting it to the jury as law, (8) admitting handwritten notes and an investigation report, (9) refusing to admit into evidence appellant's opinion testimony concerning the ultimate factual issue, and (10) refusing to allow appellant to argue or comment on certain admitted evidence. For the reasons discussed below, we affirm the judgment of the district court.
Appellant was 60 years old when he retired in April 1982 from the position of Superintendent of the St. Louis Terminal Division for MoPac. He claims that he was forced to resign because of his age. MoPac alleges that appellant was terminated because he sexually harassed a subordinate.
Appellant began working for MoPac in 1943 and worked his way up through the ranks to Superintendent of the St. Louis Terminal Division. Appellant had the ultimate authority to transfer, promote, and terminate the Division's 2,000 employees and personally participated in the hiring of all Division employees.
Appellant hired Diana Austin as a laborer in July 1980 and assigned her to the Division's Dupo, Illinois, train yard. From January 1981 to October 1981, Austin contacted appellant monthly by telephone concerning a transfer to a clerk's position. Following a telephone conversation on October 6, 1981, appellant visited Austin's home.
The events which took place at Austin's home are disputed. Appellant testified that he stood inside the door and talked to Austin for five to eight minutes regarding her complaint about her union chairman. Austin testified that appellant discussed the transfer to the clerk's position and following the conversation made sexual advances to her. He allegedly embraced her, kissed her, and attempted to put his hand under her sweater and to lead her into the bedroom. Austin resisted and appellant left.
Austin discussed the incident with her boyfriend, Joe Klaus, and her sister, Deborah Converse. Converse testified that she observed appellant holding Austin and that she answered the telephone when appellant later called Austin about the job. Klaus called appellant's house twice on the day of the incident and also contacted an attorney.
On October 8, 1981, Austin complained about the incident to her supervisor, Mike Middleton, to her union secretary, and to top union officials in her local. Middleton reported the alleged incident to his supervisor, Ben Wiggans, who reported the complaint to appellant. Appellant denied the incident and instructed Wiggans to discuss the matter with Austin.
Wiggans went to the Dupo train yard and talked with Austin, who told Wiggans about the alleged sexual harassment. Following Wiggans' conversation with Austin on October 8, 1981, appellant instructed Wiggans to give Austin the clerk's position. Austin began work as a clerk the following Monday.
Approximately one month later, a MoPac supervisor reported the incident to Arthur Shoener, MoPac's General Manager in Little Rock, Arkansas, and appellant's immediate supervisor. Shoener, assisted by a MoPac special agent, was authorized by K.D. Hestes, MoPac's Assistant Vice President of Operations, to conduct an investigation of the incident.
Shoener interviewed Wiggans, Middleton, Austin, Converse, Klaus, and appellant. Shoener took notes during the interviews and later added to them. He also prepared a typewritten investigative report, which was submitted to Hestes and J.W. Gessner, President of MoPac. After consulting with Mark Hennelly, MoPac's Senior Vice President of Law, Hestes and Gessner decided to remove appellant from the position of superintendent and keep him on the active payroll until his sixtieth birthday, at which time he could retire with an officer's pension.
Appellant's position was subsequently filled by a thirty-two year old man, who had been superintendent of MoPac's Palestine, Texas, Division for the previous four years.
On April 22, 1982, appellant filed a charge of age discrimination with the Equal Employment Opportunity Commission. He subsequently initiated this lawsuit on August 11, 1982. A jury trial commenced on September 14, 1983, and ended on September 20, 1983. The jury returned a verdict for MoPac and this appeal followed.
Appellant argues that the district court abused its discretion in granting MoPac's motion in limine which prevented appellant from cross-examining Diana Austin on her responses on her Initial Contact Interview Form completed in 1979. Austin stated on this pre-employment form that she had not been convicted of a violation of the law other than a minor traffic offense when in fact she had been convicted of the crime of retail theft under $150.00 one year earlier in 1978. Austin admitted during the deposition that she had answered "no" to the question of conviction because she believed that the shoplifting conviction had been expunged and appellant's secretary told her to answer that query in the negative. Appellant argues that the district court's granting of the motion in limine effectively eliminated the credibility of MoPac's key witness from consideration by the jury and thus the district court in effect directed a verdict in favor of MoPac.
We need not decide whether the evidence was admissible for impeachment purposes under Fed.R.Evid. 609(a) which prohibits the admission of conviction evidence unless the crime is "punishable by death or imprisonment in excess of one year" or "involves dishonesty or false statement" because the district court properly excluded the evidence under 608(b).
Fed.R.Evid. 608(b) grants the district court discretion to permit a witness to be cross-examined on specific instances of conduct probative of a witness' character for truthfulness or untruthfulness. The district court held that the alleged falsification of the application was not probative of Austin's truthfulness because the falsification occurred two years before the sexual harassment incident and Austin subsequently admitted the conviction on a MoPac employment application completed in 1980 and in the deposition. Further, Austin stated that she had answered "no" on the first application because she had mistakenly thought the conviction was to be expunged from her record and because appellant's secretary had said that this was correct in light of the expungement. The district court did not abuse its discretion in determining that this evidence was inadmissible.
Appellant next argues that the district court abused its discretion in granting defendant's motion in limine which prevented appellant from cross-examining Austin and her boyfriend concerning their use of marijuana two or three years before the sexual harassment incident. Appellant argues that the testimony of these two witnesses as to the periods during which they had smoked marijuana together was in conflict, that MoPac knew of Austin's use of marijuana, and that this evidence was related to pretext because prior drug use would indicate unreliability and untruthfulness.
The district court did not abuse its discretion in holding that "illegal drug use or transactions, without more, do not show untruthfulness." United States v. Hastings, 577 F.2d 38, 41-42 (8th Cir.1978). The district court under Rule 608(b) may determine if evidence is probative of truthfulness and under Rule 403 may exclude evidence, even though probative, if the probative value is outweighed by the prejudicial effect.
Appellant next argues that the district court abused its discretion in granting MoPac's motion in limine which prevented appellant from introducing evidence concerning MoPac's Senior Transition Program (STP). This program was initiated about one year after appellant resigned. Appellant argues that this program, which ostensibly was a voluntary retirement program, was actually a means of forcing out older employees and replacing them with younger employees, at a substantial savings to MoPac. Appellant argues that the STP is discriminatory and that this evidence is probative to show circumstantially that he too was the subject of discrimination. Appellant advised that he would offer 39 STP exhibits and call several witnesses. MoPac indicated that it would call numerous witnesses and introduce many exhibits because 197 persons had gone through the program.
The district court held that the evidence concerning the STP would result in extensive evidence on collateral issues and that the slight probative value of...
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